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HomeMy WebLinkAbout10 - Local Coastal Program Clean-up Amendment - CorrespondenceRecieved After Agenda Printed July 11, 2017 Item No. 10 July 11, 20179 City Council Agenda Item 10 Comments The following comments on an item on the Newport Beach City Council agenda are submitted by: Jim Mosher (IimmosherCa�yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229) Item 10. Local Coastal Program Clean-up Amendment (LC2017-002) As indicated in my previous written comments on this item, found in Attachment E, I object strongly to these so-called "clean-up" amendments, particularly to the proposed backing away from the 35 -foot Shoreline Height Limitation that has existed in Newport Beach since 1972. For the reasons explained briefly in the comment letter reproduced on staff report pages 10-74 through 10-75, and in more detail in the one on pages 10-84 through 10-85, amending CLUP Policy 4.4.2-1 to add an exception to the 35 -foot limit for "planned communities" is not a "clean- up" at all, but rather a major departure from the existing policy, and a departure incompatible with other policy promises made in the CLUP, specifically Policies 4.4.2-3 and 2.2.2-4 – which, oddly, the City does not seek to change. While it's true the policy statement in the Coastal Land Use Plan is not as clear as it might have been, and the Coastal Commission has misunderstood that the 35 -foot limit is for flat roofs, and a 5 -foot overage (to 40 feet) has always been allowed to the peak of sloping roofs, the concept has never included most of the broad array of exceptions stated in the new policy, and it most certainly never contemplated special treatment or exemption for so-called planned communities. As I added in oral testimony when this matter was before the Planning Commission on May 4 (see page 1-67), adoption of the proposed changes to height Policy 4.4.2-1 in the Coastal Land Use Plan would not only create internal inconsistencies within the CLUP, but a major inconsistency between the CLUP and the newly -certified Implementation Plan. In particular, there would no longer be any policy justification in the CLUP for how the IP could allow over - height construction at the Lido House Hotel site. It is neither a planned community nor a government facility nor any of the new exceptions added to the policy statement. In short, the Hotel's existence would be in conflict with the CLUP, which currently carves out a very specific height exception for it. I thought that might give the Planning Commission pause, and inspire it to examine the amendments more carefully, but it did not. At least to me, the present report lacks credibility in many other respects as well. The Noticing statement on page 10-6 assures the Council that the proposed amendments have been available for public review through a Notice of Availability for at least six weeks prior to the hearing. Not only does the NOA present the amendments with no explanation of what is being changed in the amendment passages, or why, but the NOA lists only 11 amendments. Yet the Planning Commission recommended 12 to the Council and the present resolution proposes 14. Clearly not all of this has been available for review. The effort to make it maximally difficult for the public (and perhaps the Council) to understand the nature and significance of the proposed changes continues by numbering the amendments July 11, 2017, Council Agenda Item 10 Comments - Jim Mosher Page 2 of 4 differently in Table 1 of the staff report from how they are numbered in the resolution. And by placing the key amendment to CLUP Policy 4.4.2-1 in different positions in Table 1 (where it appears as part of "No. 3"), in the Resolution (where it appears as Amendment 1) and in the redline of Attachment B (where it appears at the end instead of the start). And not only is the NOA, as provided, incomplete and not as useful as it might have been, but the redline provided as Attachment B to the present staff report does not seem to be a particularly reliable guide to the changes actually being proposed, either. For example, on page 10-41, "government facilities" does not appear among the long list of underlined exceptions shown being added to the CLUP Policy 4.4.2-1, yet it does appear in the clean copy recommended by the Planning Commission and being proposed to be adopted by the City Council. Likewise, the box at the top page 10-41 unhelpfully assures readers that "This revised CLUP Policy corresponds to Item No. 1 of Table 1 (Lido Villas PC) in the Staff Report' when it in fact does not. Whether the numerous other changes are shown accurately, or not, is hard to tell. Regarding Table 1, starting on page 10-2, Item No. 1 seems to suggest the Lido Villas PC could not be included in the original IP because it was somehow "not effective" at the time of submission. I have no idea what "effective" means, but I suspect this omission was nothing more than an error. I say that because the Lido Villas PC cover page indicates it was adopted by Ordinance No. 2013-23 on November 26, 2013 — long before the IP was written. By contrast, the later Back Bay Landing PC, adopted February 25, 2014, by Ordinance No. 2014-4 and amended as recently as April 26, 2016, by Ordinance No. 2016-8, is magically included. In short, Lido Villas does not appear to be missing for any of the reasons cited in the resolution (page 10-8: "LCP Amendment No. LC2017-002 is necessary to address issues that have arisen since the LCP was certified, incorporate land use and property regulations adopted by the City after submission of the LCP to the California Coastal Commission and to clarify LCP administrative procedures.") The misdirection continues with Item No. 3 of Table 1, where under "Restoring Shoreline Height Limit Exceptions" it implies "The City has permitted [the long list of] exceptions since the Shoreline Height Limitation Zone was adopted in 1972." In fact, the only exceptions allowed by Ordinance 1454 were for "Chimneys, flag poles, and vents" (with the approval of the Planning Commission) and "Church structures used for church purposes" (if granted a discretionary use permit). It might be noted that on the same page of Ordinance 1454 where "Chimneys, flag poles, and vents" are mentioned, the only exception provided for "planned communities" was the promise that height limits adopted in them before 1972 would continue to be honored, but subject to obtaining a discretionary use permit. Under the justification for "New Shoreline Height Limit Exception," I'm not sure where the City has lifeguard towers over 35 feet tall (or 40 with a sloping roof). Regarding the proposed resolution — Page 10-10, Amendment 1: 1 strongly object to the long list of purported exceptions to the 35 - foot height limit, stated with a vagueness that can only be deciphered by reference to the IP. This violates the basic principle that the IP is supposed to implement the CLOP, not the other July 11, 2017, Council Agenda Item 10 Comments - Jim Mosher Page 3 of 4 way around. As state above, I even more strongly object to staff's new concept of creating a carve -out from the height limit for planned communities. Even if I did not object to that policy in toto, I would point out that "provided the planned community includes site and design standards that ... be visually compatible" would be regarded as grammatically incorrect by most literate Americans who do not happen to be pirates by profession. Page 10-11, Amendment 4: The language "Amend Section 21.30.060(C) and Section 21.30.060(D) of the Newport Beach Municipal Code to read as follows, with all other provisions of Section 21.30.060(C) and Section 21.30.060(D) remaining unchanged" (and the similar language that precedes most of the following amendments) is quite puzzling. It implies that Section 21.30.060(C) and Section 21.30.060(D) contains some other language that is not listed and not changing. However, I am not aware that those sections have any parts that are not listed, and if they do, I would not know where to find them. One good thing about City staff's proposed amendment to C.1 is that they apparently didn't bother to read their own Section 21.26.055, in which, despite the City's zeal to eliminate the 35 - foot barrier, Coastal Commission staff heroically attempted to stem an earlier tide by limiting planned communities to 35 feet. That will preserve the Shoreline Height Limit at least for a little while, although I have no doubt the City will soon be back to attack that, as well. Page 10-14: Height limit exceptions 14, 15 and 16 have no parallel at this point in the "normal" Zoning Code (NBMC Title 20.30.060(D)). Page 10-16: Footnote (9) to Table 21.50.1 repeats the same phrase that we are told in the staff report needed to corrected with Amendment 10. Namely, the reference to "one-third of the City Council (two members)." As I indicated in my previous written comments (comment 5 on page 10-75 of the current staff report) this footnote seems to be attempting to restate the regulation in Amendment 10. It would seem wiser to simply cite that regulation rather than trying to rewrite it. Page 10-17, Amendment 10: It is not entirely clear if City staff sees the waiver list as being on the Council agenda (and therefore in the agenda packet), or somehow "reported" without exactly being on the agenda by being available for inspection in Council Chambers. It might be noted that the Coastal Commission itself includes the waivers in the District Directors' Reports, which are regular agenda items, subject to public comment and discussion by the Commissioners. Page 10-17, Amendment 11, parts B. 1.a & b: It is not entirely clear what the "ten percent" in a "ten percent deviation" is applied to. Page 10-18: The proposed requirements for a variance seem significantly weaker than those required under the "normal" Zoning Code (in NBMC Section 20.52.090). Page 10-19: The second sentence of part C.1 contains the peculiar locution "The notice shall contain and shall contain all of the information required in Section 21.62.020(A)." which to many might seem a typo, but could be the result of leaving out some words, or could simply have been intended for extra emphasis by someone obsessed with containment. Further down, on page 10-20, subpart 3 of this part seems to be mislabeled because it is not really one of the July 11, 2017, Council Agenda Item 10 Comments - Jim Mosher Page 4 of 4 things encompassed by the preceding "if all of the following occur:" Only 1 and 2 are part of that. #3 seems to be just an added statement of procedure. Page 10-20, Amendment 14: City staff's attempt to improve the final sentence, has yielded a curious result: "If the final action by an appellate body modifies or reverses the previous decision, the Coastal Commissioners appeal shall be required to file a new appeal from that decision." While this might have been intended to read "the Coastal Commissioner's appeaf', remain puzzled how an appeal can file an appeal. I thought only people could do that. Perhaps someone meant "the appealing Coastal Commissioners"? But then I didn't know anyone in Newport Beach City government found the Commissioners appealing. As a general comment, I have little doubt that among the hundreds of pages of sloppily adopted regulations that constitute the Implementation Plan there are many that require clean-up. I sincerely doubt that the present set is a particularly good or well -thought collection, as some of them seem positively misbegotten.